Thank you, convener, and members of the committee. This is clearly going to be a long evening, but I am grateful to every member who is here. I am, in a sense, pleased to be here and I make that point. I hope that it will prove to be a constructive evening’s work and I say at the outset that that is the approach that I will be taking for the Scottish Government. I pay particular thanks to the committee and Parliament staff for their work. This has been a taxing time.
People who have sat through the past hour—we have been going for an hour now—would be surprised if they were to see a caption that said that there was
“a whiff of anarchy and lawlessness”
about the process in which we are engaged, or that what we are trying to do is
“incompatible with the rule of law”.
I repeat the point that I made several times in the chamber earlier: we should endeavour to use accurate language that helps us to go forward, rather than language that makes things difficult and more awkward. I also endorse Patrick Harvie’s point about members quoting evidence in such a way that I, certainly, did not recognise the burden of the evidence that was given by the individuals spoken about. No doubt members will wish to reflect on that.
The bill can be improved, and during the evening there will be many opportunities to improve it. I will be looking for opportunities to do so and I will consider all suggestions seriously. Although I have said from the start that we want to see agreement reached over the withdrawal bill, we are realistic. We may ultimately have to rely on this continuity bill for our preparations. We are realistic, too, about the complexity and importance of those preparations. We, and the Scottish Parliament, must get them right. Continuity of law on EU exit is essential if we are to rescue anything at all from the chaos of Brexit.
Let me turn to the amendments that address the definition in the bill of “exit day”. The members of both the Delegated Powers and Law Reform Committee and the Finance and Constitution Committee expressed concerns about the potential use of the power in section 28, and I made a commitment to address those concerns.
I should be clear about the Scottish Government’s position, because I think that there have been misapprehensions—to say the least—about our reasons for seeking that power. We have never claimed that either the Scottish Parliament or the Scottish Government would be able to influence or effect in law the date on which the UK leaves the EU. Would that that were so, but it is a reserved matter—one with the most profound devolved consequences but a reserved matter nonetheless. We cannot, alas, prevent Brexit by this bill and we cannot delay it by this bill. We have never claimed that a different day for Brexit could apply in law in Scotland compared with the rest of the UK, despite a number of speakers making that point. The power for the Scottish ministers to appoint an exit day for the purpose of the bill could only ever be exercised with reference to the purpose of the bill, which is to deal with EU withdrawal.
However, the date of Brexit, as things stand, is not yet set in stone. The UK Government accepts that, which is why it has taken a power in its own withdrawal bill to alter the date to reflect any agreement that might be reached between the UK Government and the European Council about a different time or date of withdrawal. That flexibility is required.
The Scottish Government therefore cannot accept the amendments in the name of Alexander Burnett, Murdo Fraser and Donald Cameron, as they would tie us to a definition that is contained in a bill that has not passed the UK Parliament and which has already been subject to repeated amendment. To do so would be to renounce this Parliament’s ability to legislate for itself rather than to assert that power. The bill has to work within its own terms.
Similarly, amendment 204, in the name of Jamie Greene, would remove the ability to set exit day at all, without replacing it. It is not clear to the Scottish Government why he has removed section 28(1) and left in place subsections (2) and (3), which rely on subsection (1). It is therefore technically deficient.
We are, however, happy to accept amendment 55, in the name of Neil Findlay. I am sorry that Mr Findlay is not here to hear that—he would be as surprised as Mr Kelly looks at this stage. Amendment 55 preserves the necessary flexibility. It makes it clear to the members concerned that exit day will mean the actual day of exit, whenever that might take place. My officials are considering whether any adjustment is needed to the wording of that amendment to ensure that it properly reflects the legal arrangements for the UK’s prospective withdrawal from the EU, so as to ensure that it would operate clearly and effectively across the various provisions of the bill that depend on the term. If any such further minor adjustments are required to the provision, I commit to discussing them with Mr Findlay, Mr Kelly and other members in advance and lodging the appropriate amendments at stage 3.
The rest of the amendments in this group relate to the question of the legislative competence of the bill. That is clearly an important issue for the Parliament to consider, so I welcome the opportunity that these amendments provide to further discuss some of the factors that the Government believes make the bill within competence.
I propose to start with Adam Tomkins’s proposal, in amendment 68, to remove section 1 from the bill entirely. Let me say at the outset that we do not consider that the competence of the bill is dependent on section 1. As the Lord Advocate has set out, the competence of the bill will be assessed according to its overall purpose and the relevant legal context. I will not repeat the Lord Advocate’s reasons for concluding that the bill is within the competence of the Parliament, including, crucially, that it is not incompatible with EU law. However, we think that section 1 is important in setting the overall purpose and context as well as the intended effect of the bill, which will guide the courts in interpreting its effect.
Amendment 58, in the name of Liam Kerr, seeks to remove the word “prospective” from the provision that says that the purpose of the bill
“is to make provision—
(a) in connection with the prospective withdrawal of the United Kingdom from the EU”.
The word “prospective” simply acknowledges the overall context of the bill, which is that we are required to make preparations for continuity of law prior to withdrawal, rather than when withdrawal has happened. I therefore think that the word “prospective” is right here in the description of the purpose of the bill. The definition in the online edition of the “OED” is:
“Characterized by looking into the future; forward-looking, anticipatory; having foresight or regard for the future”.
We think that the word “prospective” is accurate in this regard.
Of Liam Kerr’s other amendments, amendment 60 seeks to amend section 1(2) so that it refers to any provision of the bill that “is” incompatible with EU law, rather than, as the wording now is, any provision that “would . . . be” incompatible with EU law if it were in effect before the relevant time. Our view is that no provision of the bill is incompatible with EU law. The conditional language is correct in acknowledging the risk of incompatibility were the provisions to be in effect before the relevant time. That is why their effect is postponed to the relevant time—so they could never be incompatible.
On amendment 65, a number of provisions throughout the bill contain provisions that are intended explicitly to confine the operation of the bill’s provisions to Scots law on devolved matters, although that would have been implicit anyway under the Scotland Act 1998. The words that amendment 65 seeks to remove in this one instance are intended simply to reflect the fact that not all of the devolved Scots law that we are dealing with is contained in an act of the Scottish Parliament. Some of it might be in Westminster acts, subordinate legislation or rules of law. It is correct to say that whether that law is devolved should be judged by reference to whether it could have been included in an act of this Parliament. That is why we have those words.
Amendment 66, in the name of Gordon Lindhurst, on the definition of EU law has exactly the same effect as the current wording in the bill. The amendment defines EU law with reference to section 126(9) of the Scotland Act 1998, and the current wording already does that. With respect, I do not see how his suggestion improves it.
Amendment 59, in the name of Murdo Fraser, seeks to ensure that the Scottish Government complies with any decision of the Supreme Court that the continuity bill as enacted is outside competence. One of Alexander Burnett’s amendments seeks to require the Scottish ministers to repeal any provision of the bill as enacted that is incompatible with the UK bill or the Scotland Act 1998. Jamie Greene has a similar amendment that would require repeal of the bill as enacted.
We have discussed the competence issue at length. The Scottish Government is confident that the bill is within the legislative competence of the Scottish Parliament, but in the event that it was referred to the Supreme Court and found to be unlawful, which we believe is unlikely, the Scotland Act 1998 is clear on the effect of that. Section 29 of the 1998 act says that any act that is outside the competence of the Parliament is not law, so we could not repeal it, because it would not be law anyway. I recommend that the members who have made the proposal look at what section 29 says. There is no need to put in statute a provision that requires ministers to comply with the law or to repeal legislation that is found not to be lawful.
The other amendments that have been lodged seek to insert provision throughout the bill to specify that its effect must be read with reference to the Scotland Act 1998. Those amendments are also unnecessary. All the legislation that goes through the Scottish Parliament must be read with reference to that act—it tells us what is and what is not within competence. That is how the question should be answered. We could not support littering the statute book with duplication or irrelevant provisions of that nature.
Adam Tomkins seeks to remove the consequential amendments to the Scotland Act 1998 in section 33 and schedule 1 that remove spent references in EU law. Those amendments are included in the bill because, although the majority of the provisions that are repealed are enactments that are protected from modification by paragraph 4 of schedule 4 to the Scotland Act 1998, the repeals do not—as I said earlier today—fall foul of section 29(2)(c) because paragraph 7(1)(b) of schedule 4 expressly allows the repeal of spent enactments, and the provisions in question will all become spent following EU exit. Adam Tomkins might not agree with that, but that is the legal position as we see it. The bill does not need to make the amendments in question, because they will have no effect following EU exit, but it is responsible superintendence of the statute book to do so. This is a tidying-up exercise.
I therefore encourage members to resist amendments 58 to 68, 72 to 74, 78, 80, 82, 88, 97, 104, 105, 112, 114, 143, 161 to 163, 203 and 204, 214 to 225 and 229 to 231, but I encourage them to vote for amendment 55.